Rush v. Mid Island Hospital

128 A.D.2d 766, 513 N.Y.S.2d 471, 1987 N.Y. App. Div. LEXIS 44452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1987
• Status: Published

Opinion

In a medical malpractice action, the defendant Mid Island Hospital appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated April 4, 1985, as, upon renewal, granted the plaintiff’s motion to vacate a conditional order of preclusion of the same court, dated August 19, 1983, and denied its motion for summary judgment dismissing the complaint as against it for failure to comply with the August 19, 1983, order.

Ordered that the order is reversed insofar as appealed from, with costs, and upon renewal, the plaintiff’s motion to vacate the August 19, 1983 order is denied, and the appellant’s motion for summary judgment dismissing the complaint as against it is granted.

The plaintiff failed to establish a reasonable excuse for his failure to comply with a conditional order of preclusion; nor did he submit an affidavit of merit establishing that the "treatment rendered [by the appellant] had been below acceptable standards and [was] causative of [the] plaintiff’s injuries” (Canter v Mulnick, 93 AD2d 751, 752, affd 60 NY2d 689 [emphasis added]).

Accordingly, the plaintiffs motion to vacate the August 19, 1983 order should have been denied and the appellant’s motion for summary judgment should have been granted. Bracken, J. P., Brown, Lawrence and Sullivan, JJ., concur.